Why indictments matter.

July 11, 2022

         When Steve Bannon received a subpoena from the January 6th Committee, he claimed “immunity” from testimony before Congress because — well, for no reason other than he is Steve Bannon. While presidential advisors enjoy some immunity from congressional subpoenas, Bannon was not a presidential advisor during the insurrection. But that is a nuance beyond the grasp of Bannon’s reptilian brain.

          The January 6th Committee referred Bannon to the DOJ for criminal contempt, and Merrick Garland obliged by indicting Bannon. When Bannon was arraigned for misdemeanor contempt, he was furious. He managed to pull a newly wrinkled shirt from his laundry basket as he held a news conference to threaten the January 6th Committee. He said that the Committee would regret making the criminal referral:

This is gonna be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. . . . We're going to go on the offense, we're tired of playing defense, we're gonna go on the offense and “stand by.”

          The “stand by” language echoed Trump’s call to the Proud Boys during a 2020 election debate—a call to arms that the Proud Boy’s answered with violence on January 6th. In other words, Bannon issued a bellicose statement that implied violence in response to the “misdemeanor from hell.”

          Bannon is about ten days from his trial on a misdemeanor charge that carries a possible one-year prison sentence. His chest-thumping bluster has disappeared. He is pleading with the judge to delay the trial. And he has asked his good friend Donald Trump to waive claims of executive privilege so that Bannon can testify. Trump has obliged by delivering a letter that waives the claim of executive privilege.

          Of course, neither Trump nor Bannon ever asserted executive privilege because Bannon defied the subpoena by not showing up. Moreover, private citizen Trump has no power to assert or waive executive privilege, which belongs to the Office of the President. The sham “waiver” of executive privilege by Trump is a sideshow designed to provide cover for the embarrassingly spectacular collapse of Bannon’s false bravado in the face of a prison sentence.

          Indictments matter. The threat of prison matters. Just ask Steve Bannon. There is a lesson in that for all of us, but especially for Merrick Garland.

Joe Biden’s op-ed on his Middle East accomplishments.

          On the eve of his trip to the Middle East, President Joe Biden penned an op-ed on his accomplishments in the region. See President Joe Biden in Washington Post, Opinion | What I hope to accomplish in Saudi Arabia and Israel. Biden’s list of accomplishments is impressive and would be so if it included only one item: The withdrawal from Afghanistan after two decades of war. To deliver on his campaign promise to end the war in Afghanistan, Biden had to overcome the unified opposition of his military advisers—something that three previous presidents (including Trump) could not do.

          Many commentators argue that Biden’s list of accomplishments looks directionally similar to Trump’s alleged “policy” in the Middle East. While that is true to a certain extent, Biden’s accomplishments are the result of thoughtful policy and constructive engagement in the region. Trump’s policy was driven exclusively by profit-maximizing junkets and shakedowns for the benefit of the Trump organization. Trump was remarkably candid about his motive for friendly relations with Saudi Arabia:

Saudi Arabia and I get along great . . . They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much

          Do you recall the creepy “crystal orb” ceremony in Saudi Arabia that was the first foreign policy visit of the Trump administration? Or how about the convenient lifting of the naval blockade of Qatar by Saudi Arabia soon after the Qatari Investment Authority granted a $600 million loan to Jared Kushner to prevent foreclosure on Kushner’s building at 666 Fifth Avenue in Manhattan?

          There may be an overlap between Biden’s Middle East foreign policy and that of Trump, but Trump acted only to further his own interests—which occasionally coincided with American interests by chance. Biden is promoting US interests, not his own.

          Politics and policy in the Middle East are maddeningly complex and any decision made by Biden will be subject to criticism. He is attempting to promote the interests of the United States while balancing equally unpopular choices. In his op-ed, Biden attempts to address one of those choices—his decision to meet with Saudi ruler Muhammed bin Salman, the man that US intelligence agencies concluded ordered the killing of WaPo journalist Jamal Khashoggi. Biden wrote:

          I know that there are many who disagree with my decision to travel to Saudi Arabia. My views on human rights are clear and long-standing, and fundamental freedoms are always on the agenda when I travel abroad, as they will be during this trip, just as they will be in Israel and the West Bank.

          Count me among those who disagree with Biden’s decision to travel to Saudi Arabia. Candidate Biden promised to make Saudi Arabia a “pariah.” It deserves to remain so until its ruler is brought to justice for ordering the killing of an American journalist. Saudi Arabia is attempting to buy its way back into the civilized nations of the world by spreading its considerable oil wealth. I wish Biden had not succumbed to that temptation, even if he is trying to relieve the pain of American consumers at the gas pump, not line his own pockets like Trump.

          Still, America and the world are much better off under a Middle East policy guided by the steady hand of Joe Biden. We should not underestimate the positive impact of Biden on foreign policy. It is considerable and is a strong point of his presidency.

Looking back on the 2022 Supreme Court term.

          The 2022 term of the Supreme Court is worse than you remember. Just seven months ago, Justice Roberts wrote that the reactionary majority had made a “solemn mockery” of the Constitution by allowing a plainly unconstitutional statute to remain in effect pending review by the US Supreme Court. See my newsletter dated December 10, 2021, Today’s Edition: “A solemn mockery" . Ah, how soon Justice Roberts has forgotten his own admonition!

          Ian Millhiser has written an excellent review of the Court’s 2022 term in Vox, The post-legal Supreme Court. Millhiser’s thesis is that the Court has abandoned the rule of law in dozens of decisions. It is worth your time to read Millhiser’s summary. It will strengthen your fortitude in the coming months and convince you that there is no choice except to expand the Court. A few snippets from his lengthy article:

If taken seriously, moreover, Whole Women’s Health v. Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor.

The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision [in New York Rifle & Pistol v. Bruen].

The Constitution does not mention [the major questions] doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.

There is much more and all of it deserves your attention.

The Highland Park mass killer posted racist and antisemitic content.

          Republicans were quick to blame “mental illness” for the mass killing in Highland Park—a tactic designed to distract attention from the fact that the victims were killed by an assault rifle. But new reports suggest that the “mental illness” ruse is also wrong. The Highland Park killer posted antisemitic and racist content on his social media sites. See Insider, Highland Park Mass-Shooter Posted Antisemitic and Racist Content Online.

          Based on his posts, the weight of evidence suggests that the killer was motivated by racism and antisemitism. That is another reason why the GOP tilt to white nationalism and replacement theory is so dangerous—especially when combined with weapons of war.

The Ninth Amendment discussion.

          I received an overwhelming response to my post about the Ninth Amendment. I tried to respond to everyone who made a substantive point, but gave up. Let me summarize a few reactions.

          First, some of the comments drifted toward a discussion of “Ninth Amendment rights.” That’s not quite right. As explained by Professor Laurence Tribe in his treatise, American Constitutional Law,

 It is a common error, but an error nonetheless, to talk of ‘Ninth Amendment rights.’ The Ninth Amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.

          Second, many readers reasonably asked, “Where do we look to find the rights alluded to in the Ninth Amendment?” Good question. My answer is in the guarantees of “liberty” in the Fifth and Fourteenth Amendments. Surely the right to privacy in an intimate relationship is such a liberty, as is the right to marry someone of a different race or the same sex, or to use contraception, or to make choices about reproduction. The concurring and dissenting opinions in Griswold make this argument.

          Finally, several readers worried that my view of the Ninth Amendment would lead to a slippery slope of unenumerated “rights” that will make us less secure and free, not more. Examples included the right to carry an AR-15 in public or drive drunk. But that argument should not give us pause. The Court frequently balances competing rights. Do you have a right to drink to excess in your own home? Of course. Do you have a right to drive after drinking? Not necessarily, because that “right” infringes on the rights of others. In such cases, the Court routinely balances competing interests. The well-worn example is that you have a right to free speech, but not the right to yell “Fire!” in a crowded theater.

          Courts frequently balance competing rights. But in Dobbs, the reactionary majority refused to balance the rights of the state and the right of pregnant women. Instead, it threw up its hands and said, “Let someone else decide.” Of course, balancing free speech and religious liberty is equally complicated, but the Court actively seeks cases that provide an excuse to engage in that balancing. The Court’s decision to refuse to balance the rights implicated by a woman’s right to privacy was a result-oriented subterfuge, nothing more.

A quick note on the comments over the weekend.

          I opened the Comments section over the weekend to anyone with access to the newsletter. The level of engagement was wonderful and gratifying. I hope you all found it useful. But I want to issue an apology to any readers who saw comments by trolls. I removed them as soon as I saw them, but there was a bit of a delay. When I open the Comments section to all readers, I have to monitor the comments throughout the day to guard against comments by trolls.

          Usually, trolls are deterred by the paywall barrier to the Comments section. I did not appreciate that aspect of the voluntary subscription model of Substack when I moved my newsletter to this platform, but it has proved remarkably effective at keeping the Comments section friendly and constructive. Not to worry, I will look for future opportunities to open the discussion to all. Again, my apologies to anyone who saw the stray offensive comments.

Concluding Thoughts.

          The January 6th Committee is holding a public hearing on Tuesday. Before the hearings began, no anticipated the significant degree to which the Committee would change the conversation around the events of January 6th. One reason Steve Bannon is asking for a delay of his trial is because of the “publicity generated by the January 6th Committee.” Uh, okay. One would think that the “publicity brought by the insurrection on January 6th” would be a bigger factor, but Bannon’s comment is a backhanded compliment to the effectiveness of the Committee.

          The Committee has been effective because of its skill in weaving complicated facts into an understandable narrative. But it has also been effective because it has illuminated the truth. That simple step has been more powerful than the disinformation machine of Republican extremists. The usual obnoxious cheerleaders on the right—Cruz, Hawley, Johnson, Jordan—have all concluded that silence is the better option in the face of the overwhelming evidence presented by the Committee.

          Even if there are no more dramatic hearings or bombshell revelations, the Committee has far exceeded its remit. But I can’t wait to see what the Committee reveals in its next presentation about the coup planning meeting at the White House on December 18th. See Talking Points Memo, Raskin: Jan. 6 Panel’s Next Hearing Will Focus On Dec. 18 WH Meeting.

Stay tuned!

          Talk to you tomorrow!